Congress Hires Attorney to Defend DOMA--At Top Taxpayer Dollar

by Kilian Melloy
Tuesday Apr 19, 2011

Even as the nation faces deep cuts for everything from the arts to expenditures by the military to assistance for women and children, Congressional leaders have hired a Bush-era solicitor general to defend an anti-gay law from 1996 in federal court.

The law in question, the so-called "Defense of Marriage" Act (DOMA), denies gay and lesbian families federal recognition and empowers states to ignore marriages granted to same-sex couples in other jurisdictions.

The Obama administration no longer defends DOMA in federal court because of Constitutional issues. A federal judge has ruled that part of DOMA violates Constitutional guarantees, and the Obama administration agrees.

There are currently nine suits against DOMA in federal courts. Republican congressional leaders are determined that the law should be defended in court, and have taken the unusual--and expensive--step of hiring a private attorney to do so.

Speaker John Boehner revealed that the House of Representatives has hired Paul Clement, who served George W. Bush as solicitor general and who is currently with the firm King & Spalding, to defend DOMA in federal court, reported on April 18.

The head of a national anti-gay group praised the move.

"At last we have a legal eagle on this case who actually wants to win in court!"
declared Brian Brown of the National Organization for Marriage.

NOM has fought against marriage rights for gay and lesbian families, taking a major role in the rescinding of then-existing rights for gay couples in California in 2008. NOM also spearheaded a successful bid to roll back marriage equality in Maine after legislators in that state approved it.

"Paul Clement is a genuinely distinguished lawyer, a former solicitor general of the United States, who we are confident will win this case," Brown continued. "Thanks to Speaker Boehner's actions, President Obama's attempt to sabotage the legal defense of DOMA is not going to work."

The Human Rights Campaign was just as quick to denounce the hiring, which will cost $520 per hour. No one knows how long it will take to resolve the suits against DOMA, or how big the tab taxpayers will be handed might grow.

"DOMA inflicts a great cost on same-sex couples but now its defense is burdening taxpayers to the tune of $520 per hour," Joe Solmonese, the president of HRC, noted. "The firm of King & Spalding and their attorney Paul Clement should be ashamed at every penny earned in trying to justify discrimination against American families."

Though the current agreement between the House and the law firm specifies a cap of half a million dollars, that sum is not set in stone and can be re-negotiated at any time.

A HRC press release noted that if the House attempts to defend DOMA in all nine of the suits the anti-gay law faces in federal court, "that would mean less than 100 billable hours would be spent per case in order to hit the $500,000 cap.

"Clearly this fee cap is a lowball estimate that hides the true cost of that House's intervention," Solmonese stated. "But the fact that Speaker Boehner has hired such high-priced attorneys clearly shows he's willing to pull out all the stops to ensure second-class citizenship for same-sex couples."

Boehner has thrown in with anti-gay legislators seeking to take funds away from the Justice Department and reallocate them for the defense of DOMA, the Huffington Post reported on April 18.

"Obviously, DOJ's decision results in DOJ no longer needing the funds it would have otherwise expended defending the constitutionality of DOMA," Boehner wrote to former Speaker of the House Nancy Pelosi. "It is my intent that those funds be diverted to the House for reimbursement of any costs incurred by and associated with the House, and not DOJ, defending DOMA."

Pelosi took Boehner to task because the hiring was done with the involvement and knowledge of only Republican congressmen.

"According to reports, a contract engaging Paul D. Clement to serve as the outside counsel reportedly was forwarded to the Committee on House Administration, although not to the Democratic members or staff of the Committee," Pelosi responded to Boehner's letter, the Huffington Post reported. "I would like to know when the contract with Mr. Clement was signed, and why a copy was not provided to Democrats on the Committee."

"Reports indicate that Clement's hourly fees could top $1000, making his role in defending DOMA a pricy proposition," the HRC noted in another news release. "In fact, it has been reported that Clement received a $5 million signing bonus at the firm, showing just how expensive this kind of representation is."

"Now we know why Speaker Boehner signed on to the right-wing plan this morning to strip money from the Justice Department to defend DOMA," said Solmonese in the April 18 release. "The price tag for this elite representation is going to be staggering and he's got to try and find the money somewhere."

The HRC's leader posited that the expenditure might not sit well with strapped voters. "With the American people clamoring for leaders to deal with the economy, voters are no doubt scratching their heads wondering how a boondoggle for right-wing lawyers is going to help their pocketbooks," Solmonese observed. "A far right fringe may be calling for a defense of DOMA, but doing so is sure to turn off independent voters. If the Speaker wants to make the lives of Americans better, he should spearhead repeal of DOMA, not waste time and resources defending it."

Solmonese also critiqued King & Spalding for accepting the case at taxpayer expense.

"In taking up DOMA's defense, the firm is aiding and abetting an effort to score cheap political points on the backs of same-sex couples," Solmonese declared. "King & Spalding was not required to take up this defense and should be ashamed of associating themselves with an effort to deny rights to their fellow citizens."

The arrangement carries the potential of taking tens of millions of taxpayer dollars out of government coffers and putting them into the law firm's accounts, noted the HRC.

Moreover, the congressional defense of DOMA comes in the wake of public opinion surveys that show that a majority of Americans--51%--oppose DOMA.

The HRC wondered in a press release what defense the lawyer would offer on behalf of the House.

"Will they go back to Congress's 1996 arguments for passing the law--that it is necessary because marriage equality is 'a radical, untested and inherently flawed social experiment' and contrary to the 'moral conviction that heterosexuality better comports with traditional (especially Judeo-Christian) morality?' " read one HRC release.

"The Justice Department stopped defending DOMA because they concluded that laws that discriminate based on sexual orientation should receive a higher level of scrutiny by courts," added the release.

"Will the House Republican leaders disagree? If so, will they argue that gays and lesbians have not suffered a long history of discrimination? That sexual orientation is somehow relevant to an individual's ability to contribute to society, when they have four openly-gay colleagues? That gays and lesbians can change their sexual orientation, a position at odds with every major psychological organization? That gays and lesbians are politically powerful, ironically in defending a law passed by Congress specifically to disadvantage them?"

Added the release, "Apart from these cases, will Republican House leadership do anything to address the inequalities that lesbian, gay, bisexual and transgender people face?"

Kilian Melloy serves as EDGE Media Network's Assistant Arts Editor. He also reviews theater for WBUR. His professional memberships include the National Lesbian & Gay Journalists Association, the Boston Online Film Critics Association, The Gay and Lesbian Entertainment Critics Association, and the Boston Theater Critics Association's Elliot Norton Awards Committee.


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